Malawi child defilement case of Asian Abdul Hassan: Defence lawyer’s questions to victim angers NGO

An NGO and Government official caused a storm during the court proceedings in Zomba, in a case of child defilement where a Malawian of Asian origin Abdul Sattar Hassan is answering charges of indecent assault and defiling a 14 year old girl contrary to section 138 and 137(1) of the Penal Code.

The NGO and Government officials were angered by questions the defence lawyer Sunduzwayo Madise kept asking the victim.

The concerned parties felt the questions were irrelevant and useless.

Pastor Mpinganjira, who is the Director of Compassionate Mission an institution that is taking care of the abused girl, raised his hand and told the presiding magistrate that the questions the defence
lawyer Madise was asking were irrelevant.

Madise: Defence lawyer for suspected sex offendor
Madise: Defence lawyer for suspected sex offendor

Mpinganjira said it was important for the defence council to go straight to real issues rather than asking useless questions.

Another concerned official to question the conduct of the lawyer was an officer from Government Social Welfare Office Mrs. Nthatiwa who further argued that Madise was asking questions that were
confusing to the abused girl as he kept on repeating irrelevant questions.

The presiding magistrate Rosemary Liyawo informed the concerned parties that they were suppose to channel their concerns through the state prosecutor and not interrupting the court proceedings as that was against the court procedure.

Liyawo, then asked if the court could adjourn for few minutes. The defence council agreed and informed the concerned parties that they had no voice in the court proceedings and that it is not allowed for the audience to interfere with court proceedings.

The court was then forced to adjourn for 10 minutes and the state prosecutor Inspector Josephine Hlupikile Chigawa took time to brief the concerned parties on the court procedure. She then encouraged them to raise their concerns to the court through her.

Youth Net and Counselling (YONECO) Media Networking and Advocacy Officer Charles Banda,who attended the court proceeding told Nyasa Times that there is need for orientation on court proceedings among concerned parties as many are not aware of what happens in a court of law.

He further said that under Criminal Procedure and Evidence Code (CPEC) section 214 (5)(7) the defence council has the right to ask questions as the section grantees him the right to ask questions that he may wish to ask and he is not limited to issues raised in the examination in chief where the prosecutor questions his / her witness.

Section 214 (5) state that the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

However, Banda noted that the court has the discretion to decide on whether the issues raised are relevant to matter or not. He added that this has to be in line with section 215 (1) of the CPEC. The
section state that “If any question asked under section 214 (7) relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, the
court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the court shall
have regard to the following considerations—
(a)     such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court or jury, as the case may be, as to the credibility of the witness on the matter to which he testifies;
(b)     such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the court or jury, as the case may be, as to the credibility of the witness on the matter to which he testifies;
(c)     Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;
(d)     The court or jury, as the case may be, may, if it sees fit, draw from the witness’s refusal to answer, the inference that the answer if given would be unfavourable.”

The absence of court intervention to protect the victim raised a concern among the institutions that are promoting child rights.

The case was adjourned to 15th March 2013 when the State is expected to bring in additional witnesses.

The case has angered many Malawians who are expressing their dissatisfaction with judicial systems where an ordinary Malawian is not granted bail on such cases.

Ministry of Gender and NGOs are following up on the case. Youth Net and Counselling (YONECO) is part of the concerned NGOs that are following up on the case through its National Child Helpline services that are being funded by UNICEF Malawi.

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